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(215 Mass. 435)

CORBETT v. NEW YORK C. & H. R. R. CO. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 11, 1913.)

1. NEGLIGENCE (§ 136*)-QUESTION FOR JURY -CONFLICTING EVIDENCE.

Where the evidence is conflicting as to how for the jury. an accident occurred, the question is one of fact

tween a creditor's bill as known in chancery | deal with this issue may stand. Whether and the relief afforded by R. L. c. 159, § 3, the portion of it which deals with this issue el. 8, which as pointed out in Powers v. Ray- should be treated as an auditor's report can mond, 137 Mass. 483, combines in one suit in be determined only on motion therefor made equity two essentially legal essentially legal proceedings. in the Superior Court. As was demonstrated by the illuminating So ordered. judgment in Parker v. Simpson, 180 Mass. 334, 62 N. E. 401, the Constitution preserves. the right of trial by jury as it was understood and practiced at common law and therefore there is no constitutional right to such trial respecting matters cognizable under the general principles of chancery. Nor does it exist as to rights gratuitously created by the legislature. Sawyer v. Commonwealth, 182 Mass. 245, 65 N. E. 52, 59 L. R. A. 726. Where the right to trial by jury has the protection of the Constitution because connected with an action at common law, a party cannot be deprived of that right because a change in the form of procedure has made it cognizable in courts of equity. Powers v. Raymond, 137 Mass. 483; Merchants' Bank v. Moulton, 143 Mass. 543, 10 N. E. 251; Ginn v. Almy, 212 Mass. 486, 495, 99 N. E. 276. It follows that in the case at bar the defendants are entitled to trial by jury respecting the debt alleged to be due from them to the plaintiff. They are not entitled to a trial by jury respecting the other branches of the case which relate to remedy and which are purely equitable in their nature.

[5] It remains to inquire whether the defendants have waived that right. The facts are that the answer was filed on February 3d, 1910. A motion for trial by jury was filed on October 28, 1910. An amendment to the bill of complaint was filed on January 16th, 1911, and an answer to the bill of complaint.as amended was filed on February 14th, 1911. A replication was filed on February 20th and the claim for jury on February 28th of the same year. The parties were not at issue as those words are used in equity practice until the replication was filed. The claim for a jury trial was filed within the time allowed therefor under Superior Court Equity Rule 36. In a proceeding like the present which rightly is brought under the statute on the equity side of the court, but which combines the establishment of a right at common law with relief afforded in equity, we think it more convenient and less confusing to hold that the procedure for asserting the right to trial by jury should follow the rules established in equity rather than at common law. This is not one of the cases where the formal replication was not filed and it is not necessary to determine within what time the right to a jury must be asserted in order to be preserved in such a case. See Stratton v. Hernon, 154 Mass. 310, 28 N. E. 269. An issue for a jury is

to be framed in accordance with this opinion. So much of the master's report as does not

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 2. RAILROADS (§ 275*)-INJURY TO LICENSEE. The placing of a freight car upon a delivery track by a railroad company, and pointing it out to plaintiff, who was sent to unload it, constituted a representation by the railroad company, upon which plaintiff was justified in acting, that the car was in a suitable place and condition to unload, and an assent, if not an invitation, for him to unload it, rendering the railroad company liable for an injury to plaintiff by the car door falling on him when he attempted to open it to get at the contents. Cent. Dig. §§ 873-877; Dec. Dig. § 275.*]

[Ed. Note. For other cases, see Railroads,

3. RAILROADS (§ 282*)-INJURY TO LICENSEE CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Whether plaintiff, who was injured by the falling of a car door while he was unloading the car in defendant railroad company's yards, was negligent in opening the door was a question for the jury.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.*] 4. RAILROADS (§ 275*)-INJURY TO LICENSEE -DEGREE of Care.

Where plaintiff, an employé of the consignee of freight, was sent to the railroad yards to unload a freight car, the railroad company was bound to exercise reasonable care to see that the car was in a condition to be safely unloaded, and its liability for an injury to plaintiff did not depend upon whether it had a reasonable opportunity to inspect the car.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 873-877; Dec. Dig. § 275.*] 5. RAILROADS (§ 282*)-INJURY TO LICENSEE -QUESTION FOR JURY.

Whether a railroad company, in an action against it for an injury to plaintiff caused by a freight car door falling upon him while unloading the car, exercised reasonable care to see that the car was in a proper condition was a question for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Díg. § 282.*]

Appeal from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Action for personal injuries by Michael Corbett against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, defendant brings exceptions.

Overruled.

G. L. Mayberry, of Boston, for defendant. John J. Mansfield, of Boston, for plaintiff.

The car was a Chicago & Great Western Railroad Company car, and was loaded with wool which the plaintiff was sent by his employers, a firm of teamsters to unload and deliver, "where it was going." It was in the defendant's yard at East Boston known as the Porter street yard, and stood upon a delivery track so called. There was evidence tending to show that a clerk in the defendant's employ acting, as could be found, within the scope of his authority, and for the purpose of aiding the plaintiff in the unloading of the car, pointed out its location to the plaintiff. On one side of the car there was a space for teams and the delivery of freight, but none on the other. The car had two doors on opposite sides, both sealed. There was nothing to show that any directions were given or were expected to be given to the plaintiff by the defendant in regard to unloading the car, and, so far as appears, he was left to break the seals and open and unload the car in his own way. The plaintiff drew up alongside the car with his team and tried to open the door, as he testified, but was unable to do so on account of the wool that pressed against it. Thereupon he went round to the other door, broke the seal, lifted the latch or hasp, and was in the act of shoving back the door when it fell upon him. This was in substance the plaintiff's account of the accident. The defendant introduced evidence tending to show that the door on the delivery side was open, and that the plaintiff attempted to open the other door for more ventilation; that the door was in good condition; and that in opening it the plaintiff used an iron bar and pried it up out of the groove in which it ran, and thereby caused it to fall on him. This was denied by the plaintiff.

MORTON, J. This is an action of tort to, invitation to him to unload it. And he was recover for injuries caused by the falling of left, so far as appears, as already observed, a car door upon the plaintiff as he was at- to break the seals and open and unload it in tempting to open it. The case is here on the his own way. It was for the jury to say defendant's exceptions. whether, when he found, according to his own testimony, that he could not open the door on the delivery side, he was required in the exercise of due care to notify the defendant, or seek assistance from it. It was also for the jury to say whether, if they found that the plaintiff opened the door with an iron bar, that was under the circumstances a proper way to open it, and whether the plaintiff used due care. There was evidence tending to show that it was sometimes necessary to use an iron bar in opening a car. The court instructed the jury in substance that if the door was not defective and it fell because of the plaintiff's carelessness in using an iron bar and in prying the door out of the groove or slide in which or on which it ran, then the plaintiff could not recover. The defendant in effect concedes that the fall of the door, if it occurred in the way in which the plaintiff testified that it did, would be evidence of negligence on the part of some one, but it contends that the only duty which, under the circumstances, it owed to the plaintiff was that of proper inspection, and that the falling of the door in the manner described by the plaintiff was not of itself evidence of negligence by it in the performance of that duty, for the reason that it did not appear how long the car had been in the defendant's possession. But the plaintiff' was not an employé of the defendant, and the defendant owed him no duty of inspection as such. The relation which the plaintiff occupied towards the defendant was that of one coming to its premises on business which involved the unloading of the car by him and in respect to whom the defendant was required to exercise reasonable care to see that the car was in a condition to be safely unloaded. It was for the jury to say whether the defendant had exercised such care and whether the accident was due to its negligence. It could not be ruled as matter of law that it was not, and by leaving it to the jury to say whether the car had been. there long enough to allow the defendant to inspect it, the court ruled too favorably, if anything, for the defendant. Its liability did not depend on whether it had or had not had a reasonable opportunity to inspect the car, but on its failure to use reasonable care to see that the car was in a condition to be safely unloaded by the plaintiff.

[1-5] The question whether the accident happened as the plaintiff testified that it did, or in the manner described by the defendant, or in some other manner, was plainly one of fact for the jury. It could not be ruled as matter of law that the plaintiff had no right to open the door for ventilation or for the purpose for which he testified that he opened it. The placing of the car upon a delivery track and the pointing out of its location by the clerk to the plaintiff constituted, or could be found to constitute, a representation by the defendant on which the plaintiff was justified in acting, that the car was in a suitable place and condition for him to unload, and an assent to his unloading it if not an

We discover nothing in the conduct of the trial which requires that the exceptions should be sustained.

Exceptions overruled.

(215 Mass. 493)
BOSTON R. HOLDING CO. v. COMMON-
WEALTH.

(Supreme Judicial Court of Massachusetts.
Suffolk. Sept. 12, 1913.)

1. TAXATION (§ 376*)-CORPORATE FRANCHISES -MODE OF COMPUTING.

Under St. 1909, c. 490, pt. 3, § 41, providing that the tax commissioner shall ascertain the true market value of the shares of each corporation subject to the franchise tax and from such value estimate the clear cash value of all the shares constituting the capital stock which, unless otherwise provided by its charter, shall be taken as the true value of its corporate franchise, that from such value there shall be made certain deductions, and under section 43, providing that every corporation, subject to such tax, shall annually pay a tax upon its corporate franchises after making the deductions provided for in section 41, at a rate obtained as therein provided, that the tax upon the value of the corporate franchise of a domestic business corporation, after making the deductions provided for in section 41, shall not exceed a tax levied at the specified rate upon an amount, less such deductions, 20 per cent. in excess of the value as found by the commissioner, of the works, structures, real estate, machinery, underground conduits, wires and pipes, merchandise, and securities, which, if owned by a natural person resident in the commonwealth, would be liable to taxation, and that the tax shall amount to not less than one-tenth of 1 per cent. of the market value of the capital stock, the 20 per cent. limitation does not come into operation in the case of a corporation which has no works, structures, real estate, etc., to which it can be applied, and in such case the valuation found, as provided in section 41 with the deductions therein authorized, if any, forms the basis of an assessment; the minimum tax, one-tenth of 1 per cent., not applying.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 625, 629-631; Dec. Dig. § 376.*] 2. TAXATION (§ 376*)-CORPORATE FRANCHISES -"MERCHANDISE"-"SECURITIES."

the full court on the pleadings and agreed facts. Petition dismissed.

Chas. F. Choate, Jr., Frank A. Farnham, and L. R. Chamberlin, all of Boston, for petitioner. James M. Swift, Atty. Gen., and Andrew Marshall, Asst. Atty. Gen., for the Commonwealth.

MORTON, J. This is a petition under St. 1909, c. 490, pt. 3, § 70, and acts in amendment thereof, for the abatement of a portion of a franchise tax assessed upon the petitioner for the year 1912 and paid by it in October of that year. The case was reserved for the full court on the pleadings and agreed facts.

tion incorporated by St. 1909, c. 519, as The petitioner is a Massachusetts corporaamended by St. 1910, c. 639. By force of its charter it is subject to the provisions of St. 1909, c. 490, §§ 40, 41, 42 and 43, relating to the assessment and payment of taxes on the franchise of domestic business corporations. The only property which it had at the time of the assessment of the tax consisted of preferred and common stock in the Boston & Maine Railroad and $21,794.81, "cash in bank." The tax commissioner assessed the tax by determining the fair cash value of all the capital stock of the petitioner which, as provided in section 43, is to be taken as the true value of the corporate franchise, and which he found to be $28,804,958, and deducting therefrom the value of the preferred and common stock of the Boston & Maine Railroad, being "securities which, if owned, by a natural person resident" here, "would not be liable to taxation," which he found to be $22,909,346, and multiplying the balance, which he found to be $5,895,612, by the rate arrived at in the manner provided in said section 43. The amount so determined was the tax paid by the petitioner.

*

Under St. 1909, c. 490, pt. 3, § 43, providing that the corporate franchise tax shall not exceed a tax upon an amount 20 per cent. in excess of the value of the works, etc., and merchandise and securities which, if owned by a natural person resident in the commonwealth, would be liable to taxation, cash on deposit in a national The petitioner contends that the maximum bank or trust company, as distinguished from a tax for which a corporation is liable under savings bank, is not "merchandise," since it is not the statutes is a tax "upon an amount bank bills or specie, even if those might be called merchandise, nor is it included in the term "securities," which, in its ordinary acceptation includes bonds, certificates of stock or of deposit, notes, bills of exchange, and other evidences of indebtedness or of property, but not mere choses in action; a deposit book in which sums deposited in such a bank are set down being more in the nature of a memorandum than an evidence of indebtedness, especially in view of part 1, section 4 which, in declaring what constitutes personal estate for the purpose of taxation, couples together "public stocks and securities" but classes by itself "money at interest" and "money."

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 625, 629-631; Dec. Dig. § 376.* For other definitions, see Words and Phrases, vol. 7, pp. 6386-6388; vol. 8, p. 7796.].

Case Reserved from Supreme Judicial Court, Suffolk County.

Proceedings for the abatement of a tax by the Boston Railroad Holding Company against the Commonwealth. Reserved for

twenty per cent. in excess of the value, as found by the tax commissioner of the works, structures, real estate, machinery, underground conduits, wires and pipes, and merchandise, and of securities which if owned by a natural person resident in this commonwealth would be liable to taxation" (section 43), and that this provision not being applicable to it because it has no such property, if the contention of the commonwealth that the "cash in bank" is not included within the description of "merchandise" or "securities" is correct, it follows that the tax should have been assessed upon it at the minimum rate.

If this is not so, then it contends that the "cash in bank" is included in "merchandise" or "securities," and that the tax should have been assessed upon an amount twenty per cent. in excess of the "cash in bank."

The commonwealth concedes that if the "cash | the tax that otherwise would be assessed, in bank" comes within the term "merchan- and comes into operation only when there dise" or "securities" then the result contend- are works, structures, real estate, etc., to ed for by the petitioner follows. But it de- which it can be applied. The twenty per nies that it properly can be so included. cent. is purely arbitrary, like the minimum We do not think that either contention of rate, and no doubt was adopted by the Legthe petitioner can be sustained.

[1] What is to be taxed is the corporate franchise. In order to tax it, its value must first be determined. The statute accordingly provides a method for arriving at that, and declares that when the value has been determined in the manner provided it shall be taken as the true value of the franchise (section 41). The method provided is for the tax commissioner to ascertain from the returns or otherwise the true market value of the shares of the corporation and then to estimate therefrom the fair cash value of all the shares constituting the capital stock, and the amount so determined is declared, as we have said for the purposes of the statute to be the true value of the corporate franchise. But obviously it would be unjust to include in such valuation for the purposes of taxation property belonging to the corporation in this or another state or country which was subject to local taxation. To do so would be in effect to cause double taxation. It also would be unjust to include securities which, if owned by a natural person resident here would not be liable to taxation. For to do so would be to indirectly subject such securities to taxation. Real estate and machin. ery subject to local taxation never have been

islature because when added to the value of the works, structures, real estate, machinery, etc., and merchandise and of securities liable to taxation, the amount so determined was deemed by it to be a reasonable compromise for the purpose of taxation in regard to the value of the franchise of domestic business corporations. The petitioner is not what would ordinarily be understood as a business corporation, but is expressly made subject so far as the valuation and taxation of its franchise is concerned to the same statutory provisions. Those provisions apply to it so far as its charter and the nature of its business and the kind of property belonging to and held by it admit, and the tax levied upon it must conform to those provisions so far as applicable. For the reasons stated we are of opinion that the tax complained of was as sessed in conformity with such provisions.

The questions now presented were not before the court in New England & Savannah S. S. Co. v. Commonwealth, 195 Mass. 385, 81 N. E. 286, 11 Ann. Cas. 678, and in American Glue Co. v. Commonwealth, 195 Mass. 528, 81 N. E. 302, 122 Am. St. Rep. 268. See Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, 98 N. E. 1078. It is possible that the construction which we have given to the statute might lead to results which could not have been contemplated by the Legislature. But if so, that is a matter for the Legislature to remedy, and not for us.

[2] The petitioner further contends that the "cash in bank" is included in the term

"merchandise" or the term "securities," and

that the tax should have been assessed upon an amount twenty per cent. in excess of that.

included in the valuation of the franchise since the tax was instituted. For a collection of the statutes see Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, 98 N. E. 1078. Hence it is provided in section 41, par. "Third," as amended by St. 1910, c. 270, that "in case of a domestic business corporation, the value of the works, structures, real extate, machinery, poles, underground conduits, wires and pipes owned by it * * * subject to local taxation, and of securities which if owned by a natural person resident in this It is plain, we think, that it was not "mercommonwealth would not be liable to taxa-chandise." It does not come within any of tion; also the value of its property situated the accepted definitions of that word. Bouin another state or country and subject to taxation therein," shall be deducted from the value of the franchise. Manifestly, however, there can be no deduction if the corporation has no property of the kinds enumerated to be deducted, and the value of the franchise must remain as determined. It is the valuation thus determined either with or without deduction which forms the basis for the assessment. Section 43, which deals Section 43, which deals with the imposition of the tax, begins by providing that "Every corporation [what corporations are meant being defined] shall annually pay a tax upon its corporate franchise, after making the deductions provided for in section forty-one, at a rate," etc. The thing to be taxed is the franchise at the valuation determined unless abated by the deductions provided for. The twenty per cent. clause is,

vier's Law Dictionary; 20 Am. & Eng. Encyc. of Law (2d Ed.) 580; Century Dictionary; Citizens' Bank v. Nantasket Steamboat Co., 2 Story, 16, 53, 54, Fed. Cas. No. 2,730. It was not bank bills or specie, even if those might under some circumstances be called merchandise.

Neither do we think that it is included in the term "securities." It is not like money on deposit in a savings bank which is represented by a book containing the contract between the depositor and the bank which may be fairly said to be a security. In its ordinary acceptation the word "securities" includes bonds, certificates of stock or of deposit, notes, bills of exchange and other evidences of indebtedness or of property, and not mere choses in action (25 Am. & Eng. Encyc. of Law, 180; 35 Cyc. 1283, note 59);

ed June 28, 1903, at about half past seven o'clock in the evening on Dorchester avenue in Boston. The two actions were tried and have been argued together. At the close of the evidence the court directed a verdict for the defendant, and the case is here on exceptions by the plaintiffs to that ruling.

claring what personal estate shall include | the defendant company. The second is by for the purpose of taxation, couples together the father for loss of services, medical at"public stocks and securities," but classes tendance and nursing. The accident happenby itself "money at interest" and "money." St. 1909, c. 490, § 4. The deposit book in which sums deposited in national bank or trust company are set down (assuming that the petitioner had one, which does not appear) is more in the nature of a memorandum between the depositor and depositary than of what is ordinarily understood as an evidence of indebtedness. See 2 Morse on Banks & Banking, §§ 290, 291. The "cash in bank" was for the purposes of taxation in the nature of money on hand rather than in the nature of a security. Gray v. Street Commissioners, 138 Mass. 414.

We think that the tax was rightly assessed, and that the petition should be dismiss

ed.

Petition dismissed with costs.

(215 Mass. 432)

We shall speak of the plaintiff in the first action as the plaintiff.

[1] The uncontradicted evidence showed that the plaintiff was playing tag with two boys, Joseph and John Murphy, children of a neighbor, in their back yard which adjoined his own; that the plaintiff was chasing the Murphy boys and that John ran out of the yard and into and across the avenue, over to the sidewalk on the other side of the avenue, the plaintiff running after him; that according to the plaintiff's testimony John, after dodging between two men or around

GODFREY v. BOSTON ELEVATED RY. CO. an electric pole, turned and ran back again,

[blocks in formation]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1790-1794; Dec. Dig. § 320;* Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*]

2. CONSTITUTIONAL LAW (§ 111*)-VESTED RIGHTS-REMEDIES.

St. 1912, c. 317, authorizing reports of cases to the Supreme Judicial Court by a justice other than the one presiding at the trial, is not unconstitutional, since it relates to a matter of procedure or remedy, and does not affect vested rights.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 267-269; Dec. Dig. § 111.*] Report from Supreme Judicial Court, Suffolk County.

Actions for personal injury by Harold Godfrey and by James Godfrey against the Boston Elevated Railway Company. Verdict was directed in each case for the defendant and the cases reported to the Supreme Judicial Court. Judgments directed on the verdicts.

Whipple, Sears & Ogden, Sherman L. Whipple, and Henry H. Bond, all of Boston, for plaintiffs. Ralph A. Stewart and Edmund S. Kochersperger, both of Boston, for defend

ant.

MORTON, J. These are two actions of tort. The first is to recover damages to the plaintiff, a minor six years and eight months old at the time of the accident, for injuries caused by being run over by a car operated by

the plaintiff still running after him, and that he (the plaintiff) heard some one shout "Get out of the way," and looked up and saw the motorman and then was struck by the car. The plaintiff testified that he did not see any car and heard no gong or anything to indicate that a car was coming. On cross-examination he testified amongst other things as follows: "Q. * * You were running about as fast as you could when you

were going back, the same as you were when you were coming over? A. Yes, sir. Q. And you were not paying any attention to anything but John when you were going back, were you? A. No, sir. Q. And you didn't hear anything? A. No, sir. Q. But you did not listen, did you? A. Yes, sir. Q. Listen? A. Yes, sir. Q. But you didn't hear anything? A. No, sir. Q. And you didn't see anything? A. No." The plaintiff also testified that as he started to go back he heard Joseph, who remained on the other side of the avenue, shout "Hurry up." The testimony of Joseph, who was called as a witness by the plaintiff, differed slightly from that of the plaintiff. He testified that after the plaintiff and John got over on to the sidewalk on the opposite side of the avenue the plaintiff tagged John, and that John fell down and the plaintiff started and ran back as fast as he could towards the witness, looking directly at him, and was struck by the car coming down the avenue; and that as the plaintiff started back he (the witness) shouted to him "Hurry up across or else he

would be it."

Dorchester avenue is straight for a long distance from where the accident took place, with a slight downward grade in the direction in which the car was coming. The plaintiff was "a quick, bright, intelligent and active" child, and was well acquainted with

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